selling green: us ftc releases proposed revisions to the “green guides”

Environmental Quality Management / DOI 10.1002/tqem / Spring 2011 / 77

Lynn L. Bergeson

Washington WatchSelling Green: US FTC Releases Proposed Revisions to the “Green Guides”After more than

three years of dis-

cussion, research, re-

view, and debate, the

United States Federal

Trade Commission

(US FTC) released

proposed revisions

to its Guides for the Use of Environmental Marketing

Claims (the “Green Guides”)1 in late 2010. The

Green Guides provide FTC “guidance” on what is

and is not appropriate in the ever-fluid area of en-

vironmental marketing. They are designed to help

product marketers avoid making false and mislead-

ing environmental claims that might violate section

5 of the Federal Trade Commission (FTC) Act.2

The proposed changes were posted on the

Commission’s website on October 6, 2010, and

released in the Federal Register on October 15,

2010.3 They are intended to update the existing

Green Guides and make them easier for compa-

nies to use and understand.

This “Washington Watch” column provides

background on the Green Guides, discusses the

proposed revisions, and identifies some areas

that will likely continue to pose challenges for

product marketers.

Background: A Brief History of the Green Guides

Original GuidanceThe Commission first issued the Green Guides

in 1992.4 It can be challenging to recall how rela-

tively nascent green

marketing was at

the time. Products

were beginning to

be marketed with

assertions that they

were “environmen-

tally friendly,” “safe

for the environment,” and similar claims.

The US FTC has always been keenly aware of

the difference between free speech and permis-

sible marketing on the one hand and false and

deceptive advertising on the other. In developing

the Green Guides, the Commission endeavored

to craft guidance that could help marketers avoid

crossing the line between the two.

The Green Guides do not have the force and

effect of law and are not independently enforce-

able. Even with the Green Guides, under the

FTC Act the Commission has the legal burden of

proving that a challenged act or marketing claim

is unfair or deceptive.

1990s Revisions The Commission revised the Green Guides in

19965 and again in 1998.6 At each iteration, the

US FTC has sought to provide help in distinguish-

ing the increasingly fuzzy line between honest

marketing that extols the environmental virtues

of products to an increasingly sophisticated con-

Greater clarity in guidance—and

more potential for enforcement

© 2011 Wiley Periodicals, Inc.Published online in Wiley Online Library (wileyonlinelibrary.com)DOI: 10.1002/tqem.20291

lic, academia, consumer groups, environmental

organizations, and product marketers.

In addition, the Commission contracted with

research groups to study and survey consumer

preferences. Over four million people partici-

pated through convenience sampling techniques.

From this number, a more focused group was

recruited to complete a detailed survey.

Each of these data points was carefully con-

sidered in the Commission’s review. A more

detailed discussion of the US FTC’s efforts is

available in the lengthy (and uniquely detailed)

preamble to the October 15, 2010, Federal Register

notice announcing the proposed revisions to the

Green Guides.

Overview of Proposed RevisionsThe proposed revisions to the Green Guides

include changes to the existing guidance, along

with new guidance for claims that were not

thought to be common when the Guides were

last revised more than a decade ago. The pro-

posed revisions are discussed in more detail in the

paragraphs that follow.

Simplification and Administrative ChangesThe proposed changes to the existing guid-

ance include simplifying the Guides wherever

possible to make them easier to understand.

First, overly legalistic language would be re-

placed with more reader-friendly wording. For

example, the proposal would change the formal de-

scription of the Green Guides found in 16 CFR sec-

tion 260.1 to use simpler and more straightforward

language. Some language that is viewed as redun-

dant and/or confusing would also be eliminated.

Second, the Commission proposes to reorga-

nize the Green Guides, largely to enhance their

clarity. For example, the revised Guides would

cover each product claim in its own section, reor-

ganize the claims alphabetically, and divide the

Guides within each section into useful subparts.

suming public and engaging in practices and

making claims that are intended to deceive.

Need for New RevisionsThe Commission notes that, since the last

revision of the guidance more than ten years

ago, “both anecdotal evidence and empirical

research indicate that consumers have a height-

ened awareness of environmental concerns and,

therefore, place increased importance on buying

products and services that will cause less harm to

the environment.”7 This trend has led to a prolif-

eration of environmental claims.

Given this background, the Commission

began its decennial

review of the Green

Guides in late 2007,

a full year ahead of

schedule. On Novem-

ber 27, 2007, the US

FTC solicited public

comment on a range

of issues, including the

need for and economic

impact of the Green Guides, the general accu-

racy of environmental claims, and, importantly,

whether the Commission should seek to provide

guidance on emerging types of product claims,

such as “carbon neutral,” “sustainable,” and “re-

newable.”8

An Extensive Revision EffortThe Commission actually did far more than

solicit comment. In fact, it pursued a quest for

clarity on marketing practices and claims with

a gusto not often seen in federal guidance de-

velopment. The US FTC convened three public

workshops to consider emerging product claims,

including claims regarding renewable energy,

carbon offsets, and “green” packaging, buildings,

and textiles. The workshops were well attended.

They featured a diversity of views from the pub-

Lynn L. Bergeson78 / Spring 2011 / Environmental Quality Management / DOI 10.1002/tqem

The proposed changes to the existing guidance include simplifying the Guides wherever possible to make them easier to understand.

are likely to constitute “general” environmental

benefit claims. The proposal cautions marketers

that the qualifications applied to seals or certi-

fications must be clear, prominent, and specific.

The Commission’s proposal offers guidance

on using certifications and seals of approval in

marketing, the need to limit the environmental

benefits asserted by the seal or certification to

particular attributes for which the marketer has

substantiation, and the need for disclosure of any

“material connections” that may exist between

the marketer and the certifying organization.

In regard to “material connections,” the Com-

mission offers the example of a manufacturer

advertising its product

as being certified by

a “third party” orga-

nization that is actu-

ally an industry trade

association of which

the manufacturer is a

member. The proposal

observes that, if the

marketer were other-

wise in compliance

with the Green Guides, the certification would

not be considered false and misleading if the

marketer accompanied its certification statement

with an explanation identifying the certifying

entity as an industry trade association.

Public Perception and the Use of Certain Terms

The proposed revisions to the Green Guides

advise marketers on the topics of public per-

ception and the use of the terms “degradable,”

“compostable,” “ozone-safe/ozone-friendly,” “re-

cyclable,” and “free of/non-toxic.” For example,

the proposal states that a proper “degradable”

claim means the product should decompose in a

reasonably short period of time, or no more than

one year. For “compostable” claims, the product

Third, the Commission would delete certain

sections of the Green Guides that it believes are

extraneous to the Guides’ core purpose. For ex-

ample, the guidance contains a provision (section

260.4) stating that the Commission reviews the

Guides periodically. Because this periodic review

is common to all of its guidance and not unique

to the Green Guides, the Commission has pro-

posed to delete this section.

Clarification of Existing GuidesThe proposals would strengthen, clarify, and

enhance the existing Green Guides.

■■ Unqualified General Claims The proposal would expand on existing guid-

ance, which cautions marketers to avoid making

unqualified general claims, including assertions

that a product is “environmentally friendly” or

“eco-friendly.” These types of claims suggest that

products have specific and far-reaching environ-

mental benefits that are difficult, if not impos-

sible, to substantiate.

■■ Qualifying Language and Claim Substantiation Building on existing guidance, the proposed

revisions urge marketers to use clear and promi-

nent qualifying language in order to telegraph to

consumers that a general environmental claim re-

fers to a more limited environmental benefit. The

proposals also admonish marketers to substanti-

ate claims, making clear that marketers should

seek to ensure that overly broad environmental

assertions do not give rise to deceptive claims.

■■ Certifications and Seals of ApprovalThe proposals would strengthen existing cau-

tions against using unqualified certifications or

seals of approval that do not specify the basis for

the certification. The US FTC states that unquali-

fied product certifications and seals of approval

Environmental Quality Management / DOI 10.1002/tqem / Spring 2011 / 79Washington Watch

Building on existing guidance, the proposed revisions urge marketers to

use clear and prominent qualifying language in order to telegraph

to consumers that a general environmental claim refers to a more

limited environmental benefit.

The US FTC suggests that marketers qualify

these claims with specific information about

the renewable material (e.g., what it is, how it is

sourced, why it is renewable) or form of energy

(e.g., wind or solar). The Commission cautions

against making unqualified claims if any part of

the product is made with nonrenewable materials

or manufactured using fossil fuels.

The new guidance would also provide advice

on carbon-offset claims. The Commission sug-

gests that marketers should have competent and

reliable scientific evidence to support carbon-off-

set claims and that they should disclose whether

any offset purchase is funding emission reduc-

tions that will not occur for more than two years.

No Guidance on Other Important ClaimsSurprisingly (and reportedly to avoid poten-

tial duplication of rules or guidance issued by

other agencies), the proposed Green Guides ex-

pressly do not address use of the terms “sustain-

able,” “natural,” and “organic.”

“Organic” claims may be subject to regulations

issued by the United States Department of Agricul-

ture (USDA) under the National Organic Program

if they are made in association with agricultural

products. “Natural” claims made in association

with pesticide products are subject to regulations

issued by the United States Environmental Protec-

tion Agency, while “natural flavor or natural flavor-

ings” claims are under the jurisdiction of the Food

and Drug Administration. Other agencies regulate

“natural” claims pertinent to other articles.

The Green Guide proposals also offer no

guidance on the use of life-cycle analysis (LCA).

The Commission states that it “lacks sufficient

information on which to base guidance”9 in this

area. The Commission adds, however, that it will

continue to apply substantiation analysis to claims

relying on LCA. This analysis will seek to assess

whether particular claims have been evaluated by

objective sources and whether the LCA is suffi-

must break down within the same general time

frame as other materials with which it is com-

posted.

The integrity of “recyclable” claims turns on

the availability to consumers of recycling pro-

grams and collection sites. When recycling facili-

ties for a particular type of product are available

to a “substantial majority” of consumers where

the product is sold, marketers may make unquali-

fied recycling claims. If, however, recycling facili-

ties are available to only a “significant percent-

age” of consumers in a given geographic area,

unqualified recycling claims run the risk of being

considered false and misleading. In such cases,

the proposal suggests

qualifying language,

such as “recycling pro-

grams may not exist in

your area” and “this

product may not be re-

cyclable in your area.”

The proposal

would also clarify

guidance regarding

“free of” claims. The Commission specifies that

a “free of” claim may be deceptive if the prod-

uct contains another substance that may cause

environmental harm, even if the product is

actually free of the specified claimed substance.

This caution is especially open-ended, since most

products contain a wide range of ingredients,

only some of which may have a negative public

reputation. The proposal makes clear that “free

of” claims may be considered false and mislead-

ing if the product has never been associated with

the presence of the particular substance on which

the claim is made.

Proposed New GuidanceThe proposed changes would add new guid-

ance covering claims that products are made with

“renewable materials” or “renewable energy.”


The proposal makes clear that “free of” claims may be considered false and misleading if the product has never been associated with the presence of the particular substance on which the claim is made.

and other regulatory or guidance programs run

by local, state, and federal agencies. This area

remains unclear, and the proposed Guides offer

little help in sorting out the issues.

Some commenters urged the Commission

to consider preempting state and local laws and

regulations that are thought to be inconsistent

with the Guides. The Commission declined to ac-

cept this recommendation, stating that the Green

Guides do not appear to be inconsistent with any

state or local provision of which it is aware.

Similarly, the US

FTC opted not to ad-

dress certain types of

claims that are left to

the unique province

of other federal agen-

cies, such as “organic”

claims made with re-

spect to agricultural

products, which are now governed by USDA

regulations.

Information Quality and Claims Substantiation

The quality of information and the level of

specificity required to substantiate claims remain

unclear and somewhat fluid. For example, a man-

ufacturer’s claim that a product is “formaldehyde

free” would not be deceptive if the manufacturer

is able to substantiate that formaldehyde emis-

sions from the product “likely are inconsequen-

tial to consumers.” Reasonable people can be ex-

pected to disagree about what “inconsequential”

means, however.

Adding Guidance on Emerging Areas The proposal takes a much-needed stab at

clarifying the standards applicable to “renew-

able energy” and “renewable materials” claims,

which were not covered by previous iterations

of the guidance. Given the inherent vagueness

cient in quality and quantity based on “standards

generally accepted in the relevant scientific fields,

when considered in light of the entire body of rel-

evant and reliable scientific evidence, to substanti-

ate that each of the marketer’s claims is true.”10

Comments RequestedThe US FTC sought comment on all aspects

of its proposed revisions to the Green Guides,

with comments due by December 10, 2010. The

Commission specifically requested comment on a

range of issues. Examples included:

• How (if at all) should marketers qualify “made

with renewable materials” claims to avoid

deception?

• Should the US FTC provide guidance concern-

ing how long consumers think it will take a

liquid substance to degrade completely?

• How do consumers understand “carbon off-

set” and “carbon neutral” claims?

Analysis of the Proposed ChangesThe proposed revisions to the Green Guides

and the Commission’s preamble discussion are

detailed and long. They also are very important

reading for any business that markets products to

consumers or other purchasing entities.

The proliferation of green-product claims in

recent years has complicated purchasing deci-

sions considerably. At times, these claims have

also contributed to abusive marketing practices,

which the US FTC has properly attempted to ad-

dress. The proposed guidance helpfully responds

to many concerns that have arisen over the years.

But it also raises new issues, while leaving some

key questions unanswered.

The Green Guides and Their Relationship to Other Regulatory Programs

One key area of concern for product market-

ers is the interface between the Green Guides


The quality of information and the level of specificity required to

substantiate claims remain unclear and somewhat fluid.

As a practical matter, however, the proposed

Guides in their current form offer considerable

assistance to product marketers, thus lessening

the significance of a protracted delay between the

proposed and final Guides.

What Will the Revised Green Guides Accomplish?

In response to the revised Green Guides, we

can expect to see narrower, more qualified and

focused environmental claims with additional

caveats, footnotes, and asterisks. Whether these

qualifications and annotations will improve

consumers’ purchasing decisions is, of course,

unclear.

Some speculate that the public will grow

weary of trying to wade through the additional

reading material, which could make relatively

simple purchases laborious and intellectually

taxing. As a result, busy consumers may simply

ignore much of the information provided. Other

observers disagree, arguing that an increasingly

sophisticated public will welcome the greater de-

tail encouraged by the revised Green Guides, and

will use the improved information when making

more informed purchasing decisions.

In truth, the impact of the Guides may be

minimal from the consumer’s point of view. In

these tough economic times, the prevailing factor

in buying decisions may simply be product pric-

ing. For much of the public, purchasing choices

ultimately have little to do with environmental

claims and everything to do with making a fixed

income go as far as possible. Indeed, “green”

claims may not figure into their calculus at all.

From a marketer’s perspective, however,

“green” cannot be excluded from the equation—

especially for today’s companies, which are ex-

periencing heightened competitive pressure and

intense scrutiny from discerning public interest

groups, concerned boards of directors, activist

investors, and other centers of influence.

of these claims and the multiple ways in which

they arguably can be made with little actual sub-

stantiation, the proposed Guides offer consider-

able help. The public’s response and comments

on this topic will further clarify an area badly in

need of guidance.

Improving Clarity in Established Areas The proposed Guides offer much greater clar-

ity on a broad range of claims that have already

become familiar to the public, including asser-

tions regarding general environmental benefits

and degradability, certifications and seals of ap-

proval, and “free of” claims. The overarching

message to marketers

here (as with newer

claims) is to emphasize

specificity, substantia-

tion, and qualification.

Under the pro-

posed revisions to the

Green Guides, broad

and unqualified claims

will be an invitation

to further scrutiny. They might even leave a mar-

keter open to a charge of making a de facto false

and misleading claim in violation of section 5 of

the FTC Act.

Importantly, the Commission offers many

specific examples of claims that it believes to

be inappropriate or inadequate for one reason

or another. Moreover, the proposed revisions

are organized and written in a clearer, more

logical manner.

Crafting the Final Revised Green Guides It remains unclear when the revised Green

Guides will be issued in final form. The proposals

received many comments, and the Commission

likely will review and consider these thought-

fully. As a result, it may take the US FTC a bit of

time to issue the final Guides.


For much of the public, purchasing choices ultimately have little to do with environmental claims and everything to do with making a fixed income go as far as possible.

Notes1. 16 C.F.R. part 260.

2. 15 U.S.C. § 45.

3. US Federal Trade Commission (US FTC). (2010, Octo-ber 15). Guides for the use of environmental marketing claims, proposed revisions to guidelines, 75 Fed. Reg. 63552–63607.

4. US Federal Trade Commission (US FTC). (1992, August 13). Guides for the use of environmental marketing claims, 57 Fed. Reg. 36363.

5. US Federal Trade Commission (US FTC). (1996, October 11). Guides for the use of environmental marketing claims, final rule, publication of revised guides, 61 Fed. Reg. 53311–53320.

6. US Federal Trade Commission (US FTC). (1998, May 1). Guides for the use of environmental marketing claims, final revised guides, 63 Fed. Reg. 24240–24251.

7. 75 Fed. Reg., at 63553 (col. 3).

8. US Federal Trade Commission (US FTC). (2007, Novem-ber 27). Guides for the use of environmental marketing claims, request for public comment, announcement of public meetings, 72 Fed. Reg. 66091–66093; Guides for the use of environmental marketing claims, carbon offsets and renewable energy certificates, announcement of pub-lic workshop, request for public comment, 72 Fed. Reg. 66094–66097.

9. 75 Fed. Reg., at 63559 (col. 1).

10. 75 Fed. Reg., at 63560 (col. 2).

What Should Companies Do?Given the importance and strength of all

these pressures, a careful read of the proposed

Green Guides is essential for companies that

have any interest in pursuing “green” marketing

claims. The Guides are not regulatory require-

ments. But they do offer much greater specificity

about what the Commission considers accept-

able—and what is viewed as crossing the line.

This means that the specter of enforcement

under section 5 of the FTC Act arguably looms

larger. Companies thus should take care in assess-

ing all green claims against the new, improved,

and greatly clarified guidance offered in the pro-

posed revisions to the Green Guides.

The US FTC has not strenuously enforced sec-

tion 5 in the past with regard to environmental

claims. But this could change given the rich and

greatly expanded guidance it has now offered re-

garding what is and is not considered misleading

and deceptive in “green” advertising.


Lynn L. Bergeson is managing director of Bergeson & Campbell, P.C., a Washington, DC, law firm focusing on conven-tional and engineered nanoscale chemical, pesticide, and other specialty chemical product approval and regulation; envi-ronmental health and safety law; chemical product litigation; and associated business issues. She is also president of The Acta Group, L.L.C., and The Acta Group EU, Ltd, with offices in Washington, DC, and Manchester, UK.

selling green: us ftc releases proposed revisions to the “green guides”

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